Krey Packing Co. v. United States Fidelity & Guaranty Co.

ALLEN, J.

This is a suit brought upon a fidelity bond issued by the defendant company to indemnify plaintiff against loss by reason of dishonesty on the part of an employee of plaintiff, to the extent and upon contingencies specified. On motion of the defendant, the cause was referred to Clifford B. Allen, Esq., as referee, to try all of the issues. The referee in due time filed his report, setting out his findings of fact and conclusions of law, and recommending judgment for the defendant. The court overruled plaintiff’s exceptions •filed to the report, and entered judgment in accordance with the said recommendation of the referee; and the case is here upon plaintiff’s appeal.

On March 25, 1909, plaintiff signed and delivered to the defendant an “Employer’s Statement,” giving written answers to a list of questions therein propounded. The instrument recited that an application had been made to defendant to issue a “bond of security” for one Williamson, as salesman and collector in plaintiff’s service, to the amount of $2000; and that defendant desired to have answers to the questions propounded, which answers would “be taken as the basis of the bond if issued. ’ ’ The following questions there *597 in contained, and the answers made thereto by plaintiff, are here pertinent, viz.:

“Q. What salary will he (Williamson) receive? A. $150 monthly ($150).”

“Q. If applicant is a salesman or collector, are statements rendered to customers in arrears, and at what periods? A. Yes, weekly.”

The instrument further provided that it was agreed that the answers therein made were “to be taken as conditions precedent and as the basis of the said bond applied for,” or any renewal or continuation thereof.

On April 13, 1909, defendant issued and delivered to plaintiff the bond sued upon. It recited that plaintiff, the obligee therein, had delivered to defendant, the surety, the above-mentioned “Employer’s Statement,” which was made a part of the bond; and that the bond was issued upon the faith of the said statements of the obligee, which the latter warranted to be true, and subject to the provisions and conditions contained in the bond itself, which should be conditions precedent to the right of the obligee to recover thereon.

Plaintiff’s bonded employee, Williamson, who resided at Hannibal, Missouri, was a travelling salesman, his duties being to solicit trade and to collect for sales previously made by him. His territory included various towns in the northeastern part of Missouri, and also Keokuk and Burlington, Iowa, and Quincy and Warsaw, Illinois. In the performance of his duties he visited each of these towns approximately once every two weeks.

On or shortly prior to August 16, 1909, plaintiff discovered that Williamson was short in his accounts and on the last-mentioned date notified defendant thereof. To this letter defendant replied on August 20,1909, asking plaintiff to have an investigation made and to forward to defendant an itemized statement relative *598 to the loss. Plaintiff continued an investigation already begun, and reported to defendant the result thereof; and later defendant conducted an investigation on its own account. Various other letters passed between plaintiff and defendant prior to March 10, 1910; plaintiff repeatedly demanding payment of its claim, and defendant replying, in substance, that it was not ready to act because of not having a full report from its special agent who was investigating the matter. On March 10, 1910, defendant, by letter, denied liability to plaintiff on the bond.

The basis of defendant’s refusal to indemnify plaintiff for the loss sustained was that plaintiff had not paid Williamson $150 per month and had not sent weekly statements to customers in arrears, in accordance with the foregoing answers contained in the “Employer’s Statement.” In its answer defendant averred such to be the facts, making appropriate allegations as to the terms of the “Employer’s Statement” and the bond, and asserted that the same precluded a recovery thereon by plaintiff. It was these defenses that were sustained below; and though others were interposed it is here unnecessary to further notice the issues, in the view which we take of the case.

It appears that instead of paying Williamson a salary of $150 per month plaintiff paid him $75 on the fifteenth day of each month and a like amount on the last day thereof, out of which he was required to pay all of his travelling expenses of every nature, excepting buggy hire; such travelling expenses approximating from $3 to $3.50 a day when he was on the road.

Plaintiff’s system of handling its accounts with Williamson’s customers was as follows: An invoice accompanied a shipment. If it happened that another order was received from the -same customer before the payment of an account which was fifteen-days old, a new statement of the entire account was sent to the customer; otherwise the bills were sent to Williamson to *599 be presented by him to his customers as he visited them. However, when a bill was a month or more in arrears a statement was mailed the customer and payment requested, or a draft was drawn on him.

It is true as appellant asserts, that contracts of this character issued by surety companies are not entitled to the same favorable construction, with reference to the liability of the surety thereon, as are ordinary personal bonds, but are subject to the general rule of construction applicable to insurance contracts. [See Roark v. City Trust, etc., Co., 130 Mo. App. 401 , 110 S. W. 1 ; Long Bros. Gro. Co. v. Fidelity & Guaranty Co., 130 Mo. App. 421 , 110 S. W. 29 ; Boppart v. Surety Co., 140 Mo. App. 675 , 126 S. W. 768 ; Union American Fire Ins. Co. v. Bonding Co., 146 Wis. 573 ; American Surety Co. v. Pauly, 170 U. S. 133 .] The contract should be so viewed here; but the terms thereof appear to be plain and unequivocal, free from any ambiguity or uncertainty as to their purport.

There can be no doubt that the foregoing answers were untrue when made, and that plaintiff did not thereafter act in conformity to the statements thus made by it. They are expressly declared to be warranties ; and should doubtless be held to be such. [See Hunt v. Fidelity & Casualty Co., 99 Fed. 242 .] It is immaterial, however, whether they be termed warranties or otherwise. They pertain to matters highly material to the risk; and liability on the part of the obligor was clearly made conditional upon the truth of the matters thus asserted and constituting a vital element of the contract between the parties. If such statements were not true at the time, and the contract in this respect not thereafter complied with by the obligee, at least substantially, this should undoubtedly operate to avoid liability on the part of defendant, unless a waiver of the forfeiture appears. The terms of defendant’s undertaking, which are clear and unmistakable, could not be construed otherwise; and there *600 is nothing in the policy of onr statutory law relative to insurance contracts to obviate the effect thereof. In this connection see: U. S. Fidelity & Guaranty Co. v. Downey, 88 Pac. 451 (Colo.); Hunt v. Fidelity & Casualty Co., supra; Carrollton Furniture Mfg. Co. v. Credit Indemnity Co., 124 Fed. 25 ; Aloe v. Mutual Reserve Life Assn., 147 Mo. 561 , 49 S. W. 553 ; Kenefick-Hammond Co. v. Fire Ins. Society, 205 Mo. 294 , 103 S. W. 957 ; Dolon v. Insurance Co., 88 Mo. App. 666 ; White v. Insurance Co., 93 Mo. App. 282 .

As to Williamson’s salary the purpose of the inquiry was to ascertain Ms earnings, i. e., what was paid to him as compensation, because of the bearing which this would naturally have upon the risk to be incurred by defendant. Whether or not Williamson’s salary was such as to mimmize the temptation to use the money of his employer which came into his hands was a matter of prime importance to defendant. There can be no question as to what was meant by the word salary, and that it cannot be tortured into meaning a sum out of which the employee was to pay his travel-ling expenses, such as railroad fare, hotel bills, etc.

Likewise the method employed by plaintiff to keep a check upon its employee’s collections was a matter greatly affecting the risk. Instead of sending weekly statements to its customers, plaintiff sent them to the salesman himself. This, of course, was not a compliance with the requirement that they be “rendered to customers.” Had the latter been observed, fear of prompt detection might have deterred the unfortunate employee from misappropriating moneys collected by him.

Nor do we perceive anything in defendant’s conduct with reference to plaintiff’s claim to operate as an estoppel to assert the defenses in question or to constitute a waiver thereof. Plaintiff furmshed defendant with a statement of the alleged shortage, and repeatedly demanded payment of the claim. Defend *601 ant did nothing except to reply that it was not ready to act, until March 10,1910, when it disclaimed liability because of the matters aforesaid which had been discovered by its investigation. No element of estoppel appears to be present; for plaintiff was not in auy way induced to alter its position to its detriment, to incur expense or to forego any right. Nor does it seem that defendant could be held to have waived its right to rely upon these defenses, for it was not shown that defendant was possessed of knowledge respecting the matters upon which the defenses were predicated until at or about the time when it disclaimed liability on the bond, and hence it does not appear that defendant by anything in its correspondence or its attitude toward the claim could have intentionally abandoned a known right. [See Oehler v. Insurance Co., 159 Mo. App. 696 , 139 S. W. 1173 ; Francis v. Supreme Lodge, etc., 150 Mo. App. 347 , 130 S. W. 500 ; Keet-Roundtree Dry Goods Co. v. Insurance Co., 100 Mo. App. 509 , 74 S. W. 469 ; Gibson v. Town Mutual Insurance Co., 82 Mo. App. 515 .]

The judgment should be affirmed, and it is so ordered.

Reynolds, P. J., and Nortoni, J., concur.